S Y L L A B U S

A school district that places a teacher on unrequested leave of absence need not reschedule the
school curriculum in a manner that compromises the students' educational needs or the district's
supervisory responsibilities in order to accommodate the seniority rights afforded the teacher under
Minn. Stat. § 122A.40, subd. 11 (2000).

O P I N I O N

G. BARRY ANDERSON, Judge

Respondent Independent School District No. 696 placed relator Tamia Moe on an approximately
15% unrequested leave of absence. Relator sought to exercise seniority rights pursuant to Minn.
Stat. § 122A.40, subd. 11 (2000). Following a hearing, respondent determined that relator's
teaching schedule did not allow her to bump into supervisory assignments held by two less-senior
teachers without compromising the educational needs of the district's students. Because respondent
did not err in applying the law and because the decision is supported by substantial evidence, we
affirm.

FACTS

Relator, employed by respondent Independent School District No. 696 in Ely, Minnesota, is a
continuing-contract art teacher who teaches both elementary and secondary students. Relator, the
only art teacher in the district, has a seniority date of July 5, 1994 and is ranked 38 of 40
teachers on respondent's tenured seniority list. The district also employs 14 probationary teachers.

In response to a decline in enrollment and budget, respondent eliminated a 40-minute afternoon
section of elementary art for the 2000-01 school year. Respondent proposed to place relator on an
unrequested leave of absence (ULA) equal to about 65 minutes per day, or a .155 full-time
equivalent (FTE). Relator requested and received a hearing before an independent hearing
examiner.

At the hearing, relator contended that she was not the appropriate teacher to be placed on ULA
because statutory bumping rights allowed her to take supervisory periods, such as lunch and study
hall, from less-senior teachers. Relator argued that by changing her preparation and lunch schedule,
she could assume the supervisory duties held by one or both of two less-senior probationary
teachers. The less-senior teachers, relator contended, would become the appropriate teachers to
be placed on ULA.

The independent hearing officer found that relator's elementary and secondary teaching schedule
did not coincide with the periods supervised by the less-senior teachers. The hearing officer
concluded that allowing relator to bump into one of the less-senior teachers' supervisory periods
would leave students unattended for several minutes. The hearing officer determined that scheduling
must meet the best interests of the students and that those interests could not be discounted in favor
of furthering seniority rights. The school board adopted the hearing officer's findings and
conclusions and further concluded that, based on the proportion of time relator taught in the
secondary school, she would not be entitled to sufficient supervisory time there. Respondent placed
relator on ULA to the extent of .155 FTE.

Relator proceeds by writ of certiorari, alleging legal error and a result based on insufficient
evidence.

ISSUES

Did respondent base the decision to place relator on unrequested leave of absence on an
erroneous theory of law?

Is there substantial evidence in the record to support respondent's decision to place relator
on unrequested leave of absence?

ANALYSIS

Relator argues that respondent applied an erroneous theory of law and reached a conclusion that
was not supported by the evidence by placing her on ULA. Relator contends that the evidence
shows she is, pursuant to Minn. Stat. § 122A.40, subd. 11(a) (2000), entitled to bump less-senior
teachers from supervisory positions, such as lunch room or study hall, and that such positions were
available.

The nature of judicial review in a certiorari proceeding is limited. The school board's decision is not
reviewed de novo and will not be set aside unless the decision is fraudulent, arbitrary,
unreasonable, not supported by substantial evidence in the record, not within the school board's
jurisdiction, or based on an erroneous theory of law. Ganyo v. Independent Sch. Dist. No. 832,
311 N.W.2d 497, 500 (Minn. 1981).

I.

We first consider whether respondent applied an erroneous theory of law in determining the scope
of relator's contractual bumping rights. Respondent concluded that, based on past district practice,
relator was entitled to bump into existing supervisory positions of less-senior teachers. But
respondent found, considering relator's teaching schedule, that she could not bump into an existing
supervisory position without leaving students unattended for several minutes. Respondent decided
that because the interests of the district's students would not be served by leaving them unattended,
no existing position was available to relator.

Because relator's contract does not contain a negotiated unrequested leave provision, her situation
is governed by state statute. Minnesota law provides that boards of education may place teachers
on unrequested leaves of absence as needed to respond to declining enrollment or a reduced
budget. Minn. Stat. § 122A.40, subd. 11. Moreover, a teacher with continuing contract rights must
not be placed on ULA while probationary teachers are retained in positions for which the teacher
who has acquired continuing contract rights is licensed * * * . Id., subd. 11(a).Case law
interpreting Minn. Stat. § 122A.40 has further clarified the scope of bumping rights. [1]

If a senior teacher whose position is discontinued is licensed for a position held by a less-senior
teacher, the senior teacher is entitled to bump the less-senior teacher directly or through a
realignment of other staff positions, provided that the senior teacher is appropriately licensed for the
position sought. Kvernmo v. Independent Sch. Dist. No. 403, 541 N.W.2d 620, 621 (Minn.
App. 1996), review denied (Minn. Mar. 19, 1996); see also Beste v. Independent Sch. Dist.
No. 697, 398 N.W.2d 58, 61 (Minn. App. 1986) (distinguishing bumping from realignment; the
latter requires reassignment of a second senior teacher to accommodate the first senior teacher).

Bumping rights do not, however, require districts to make unlimited staffing changes. The
demanded position must be an existing position; a teacher has no right to ask the school board to
create one. In re Independent Sch. Dist. No. 318, 435 N.W.2d 81, 84 (Minn. App. 1989).
Relator is a licensed, contract art teacher with seniority over two contract teachers and fourteen
probationary teachers. Relator had a right to bump into their schedules for existing art-teaching
positions. The school district, however, did not have any other art positions available. As a result,
relator sought to bump into a supervisory position, such as a study hall or lunchroom assignment.

Because a teacher cannot be licensed to supervise, seniority rights normally do not attach for the
supervision of study halls. Kvernmo, 541 N.W.2d at 621 and n. 1. But whether seniority rights
attach to a particular position, including supervision of study halls, turns on the past practice of the
school district. Id. at 622; see alsoFoley Educ. Ass'n v. Independent Sch. Dist. No. 51, 353
N.W.2d 917, 924 (Minn. 1984) (recognizing the importance of past practice and determining that
school district's departure from past practice of assigning licensed teachers to supervise study halls
constituted an unfair labor practice).

In this case, the past practice of the school district was to allow licensed teachers in the secondary
school to have supervisory assignments from time to time. Past practice shows those assignments
were 50 minutes in length and available only in the secondary school. Thus, relator had a right to
bump into any less-senior secondary school teacher's assignment for which relator was licensed,
including the right to bump into, at most, 50 minutes of a less-senior teacher's supervisory
assignment in the secondary school. [2]

But [t]he exercise of school management prerogatives * * * may limit the availability of positions
and the possibilities for seniority bumping or realignment. Kvernmo, 541 N.W.2d at 622. Even if
a teacher has a contractual right to bump into supervisory duties, a school board must balance the
feasibility of doing so with the educational interests of the school children:

The policy basis for according discretion to school boards is premised not on the
fact that school board discretion is an end unto itself, but rather that this discretion
be exercised so as to advance and protect the educational interests of school
children.

In re Independent Sch. Dist. No. 318, 435 N.W.2d at 84-85 (applying policy in a bumping
situation and citing Strand v. Special Sch. Dist. No. 1, 392 N.W.2d 881, 885 (Minn. 1986)
(holding that in realignment situations, the school district's needs reflecting the welfare of the
students and public must be considered) and Westgard v. Independent Sch. Dist. No. 745, 400
N.W.2d 341, 345 (Minn. App. 1987) (discussing school district's needs as a factor in a
realignment context), review denied (Minn. Apr. 17, 1987)). Accordingly, as respondent
concluded, relator was entitled to bump into an existing secondary-school supervisory position held
by a less-senior teacher so long as the bump did not require scheduling adverse to the interests of
the district's students. Because respondent correctly assessed the extent of relator's bumping rights,
we hold that respondent did not base its conclusion on an erroneous theory of law.

II.

Relator next argues that respondent has not shown, by substantial evidence, that if she bumped into
an existing less-senior teacher's supervisory assignment, the bump would be adverse to student
interests. Respondent counters that, given relator's teaching schedule, there were no supervisory
assignments held by less-senior teachers into which relator could bump without leaving students
unattended for brief periods of time.

8:10 to 9:00
9:10 to 9:40
9:45 to 10:15
10:20 to 10:50
10:50 to 11:40
11:40 to 12:12
12:12 to 1:02
1:06 to 1:56

Secondary School
Elementary School
Elementary School
Elementary School
Preparation Time
Lunch
Secondary School
Secondary School

Only two less-senior teachers hold 2000-01 supervisory assignments. Respondent assigned
secondary-school math teacher Thomas Maloney to supervise study hall on Mondays,
Wednesdays, and Fridays from 10:52 to 11:42. On Tuesdays and Thursdays, Maloney supervises
a lunchroom from 10:48 to 11:18. Secondary-school science teacher Todd Hohenstein's
supervisory assignment is scheduled from 11:40 to 12 -- approximately 12:15. Respondent also
considered: (1) respondent provides teachers with a duty-free lunch period of at least 30 minutes;
(2) relator's contract requires that the district give her preparation time equal to 20% of teaching
time; (3) students are allowed four minutes to pass between classes; and (4) the elementary and
secondary schools are in separate buildings.

(1) Maloney's Tuesday/Thursday lunchroom duty overlaps relator's last morning elementary art
class by two minutes. Relator could not bump into this assignment without leaving her elementary
art class at least two minutes early or arriving at Maloney's lunchroom duty at least two minutes
late.
(2) Maloney's Monday/Wednesday/Friday study-hall duty overlaps relator's lunch by two minutes.
Relator could bump into this partial assignment, but only by reducing or rescheduling her
preparation and lunch times.
(3) Hohenstein's daily supervisory duty overlaps relator's first afternoon secondary-school art class
by three minutes. Relator could not bump into this assignment without leaving the supervisory
duty at least three minutes early or arriving at least three minutes late to her secondary-school art
class.

The school superintendent testified that if the district were required to cut into other teachers' time,
or forced to provide supervisory time that is not consistent with existing schedules, the result would
be an unreasonable mess and that the district could not afford to diminish the quality of
education provided to students. The supervision of students at all times is a legitimate
school-management concern that sufficiently supports respondent's decision in this case.

Relator, however, contends that by shortening her lunch, she could bump into Maloney's
Monday/Wednesday/Friday study hall. Alternatively, she contends, by switching her lunch and
preparation times, she could bump into Hohenstein's supervisory duty, which she alleges actually
ends at 12:12, not 12:15, based on her own secondary-school schedule. Relator also suggests that
the less-senior teachers could cover for her for the few minutes she may need to arrive late to or
leave early from the supervisory assignments. But there is no evidence in the record that
Hohenstein's supervisory schedule actually ends at 12:12. Additionally, and significantly, the partial
bumping and covering arrangements relator proposes do not result in the desired cost savings to the
district because the less-senior teachers must be paid to remain at school to fulfill portions of the
supervisory assignments.

Relator argues that Westgard makes it explicit that the district must attempt to create a schedule
which will accommodate the most senior teachers and contends that the school did not make the
required attempt to shift positions. Though Westgard recognized the statutory right to bump, the
decision to reverse and reinstate the terminated teacher turned on the district's failure to consider
realignment. 400 N.W.2d at 345-46. As Westgard explains, realignment involves the shifting of
several licensed positions to accommodate a senior teacher. Id. at 345. Because relator, licensed
only to teach art, could not have been reassigned a different licensed position, we reject this
argument.

Finally, to the extent that relator argues she is entitled to bump into parts of both Maloney's and
Hohenstein's assignments, she in essence asks that the school district craft a position for her from
two other positions. The argument that a school district must create a position or move a class time
contrary to student needs to accommodate bumping has been rejected by this court. See In re
Independent School Dist. No. 318, 435 N.W.2d at 84-85 (concluding that district was not
required to move a Title I class from morning to afternoon to allow teacher placed on ULA to
exercise bumping rights).

Consequently, relator has not pointed to an existing position into which she can bump without
leaving students unattended, a situation that respondent reasonably seeks to avoid. We conclude
that there is substantial evidence to support respondent's conclusion that there is no existing position
into which relator can bump. Accordingly, we hold that respondent correctly determined that
relator is the correct teacher to be placed on unrequested leave of absence.

D E C I S I O N

Respondent school district did not apply an erroneous theory of law by concluding that, consistent
with past district practice, relator had a right to bump into existing supervisory assignments held by
less-senior teachers so long as the exercise of that right did not compromise the students'
educational needs or the district's supervisory responsibilities. Substantial evidence that the exercise
of relator's bumping rights would leave students unattended supported respondent's decision to
place relator on unrequested leave of absence.

Affirmed.

Footnotes

[1] In 1998, the legislature recodified Minn. Stat. § 125.12 as Minn. Stat. § 122A.40. See 1998
Minn. Laws ch. 397 (recodification). Consequently, pre-1998 case law in this area references the
earlier version of the statute.

[2] Relator teaches 3/5 time in the secondary school, and the parties dispute the number of minutes
of supervisory time relator is entitled to bump. Respondent concluded that a full-time
secondary-school teacher would only be entitled to a supervisory assignment equivalent to 20% of
teaching time (50 minutes) and therefore relator, teaching 3/5 time in the secondary school, is only
entitled to 30 minutes of secondary-school supervisory time. A 20% supervisory assignment is
consistent with past practice of full-time secondary-school teachers, but there is no evidence in the
record concerning any past practice by the district of granting a pro-rated share of supervisory time
to teachers who, like relator, instruct in both the elementary and secondary schools. We do not
address the percentage of relator's entitlement, however, because respondent's decision rested on
schedule incompatibility.